Broadening approach to free speech actually means narrowing it

Jacob Sullum explains at Reason’s “Hit and Run” blog why critics are wrong to blast the American Civil Liberties Union for its stance on free speech.

In the wake of last weekend’s violence in Charlottesville, the American Civil Liberties Union is facing a backlash from people dismayed that an organization dedicated to defending freedom of speech thinks that mission includes defending the right of white supremacists to hold a rally in a public park. Some of the ACLU’s critics mistakenly claim that “hate speech” is not protected by the First Amendment. K-Sue Park, a critical race studies fellow at UCLA, takes a more nuanced (or maybe just more confusing) position, arguing that the ACLU’s reading of the First Amendment is too “narrow,” by which she means it is too broad. …

… One way speech rights are under attack right now (as always) is the argument that they should not apply to disfavored speakers, who from Park’s perspective include right-wing racists and people organized as corporations. By asking the ACLU to think about freedom of speech “in a broader context,” she is actually asking the ACLU to abandon the principle altogether. The whole point of the principle is that it applies regardless of who you are or what you are saying. If the ACLU gave up its “colorblind logic” and started using racial and ideological filters to pick First Amendment cases, it would no longer be defending freedom of speech; it would be defending the interests of particular social and political groups.

Freedom of speech does not require the “level playing field” of Park’s dreams. It is obviously true that wealth helps people get their messages across. So do fame, good looks, and verbal felicity. But those advantages do not render freedom of speech a nullity, any more than applying the Fourth Amendment to mansions as well as shacks or guaranteeing due process to rich as well as poor defendants makes those protections meaningless. To the contrary, legally guaranteed rights matter most to people without the social and political connections that might provide protection from official harassment.